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Out of time?

SJD v Secretary of State for Energy & Climate and Rhondda Cynon Taf County Borough Council [2016]

Background

This was a somewhat unusual noise induced hearing loss ("NIHL") claim in which limitation was tried as a preliminary issue.

The Claimant was born on 16 December 1951. He had been employed by a number of employers after leaving school when he was 16 years old. His last employment was as a Refuse Collector with the Local Authority from 1997 until 2008. It appears that he consulted Solicitors for the first time in about 2015.

The Claimant’s Solicitors wrote a Letter of Claim to the Local Authority dated 27 July 2015. The Letter of Claim intimated a claim for damages for NIHL against the Local Authority and did not mention any other Defendants.

It transpired that the Claimant’s Solicitors had commenced proceedings against the Local Authority and other Defendants by way of a Claim Form issued in the County Court Money Claims Centre on 25 February 2015. Surprisingly, this was not mentioned in the Letter of Claim.

The Claimant’s Solicitors then served proceedings upon the Local Authority undercover of a letter dated 15 September 2015.

We were instructed to act on behalf of the Local Authority on 17 September 2015, and the first thing that occurred to us was that the Claim Form had been served more than 4 months after the date of issue. We wrote to the Claimant’s Solicitors to draw this matter to their attention and to seek an explanation for the situation that had arisen. We informed them that it appeared that the Claim Form was invalid when it was served and that we would be advising the Local Authority to strike out the claim on this basis. The Claimant’s Solicitors did not respond to our letter and we issued an Application to strike out the claim.

The Claimant’s Solicitors responded to the service of the Application Notice upon them immediately. They informed us that they had applied to the Court to extend the validity of the Claim Form and that their Application had been granted. They provided us with a copy of the Order made by the Court, the Application Notice and their Witness Statement in support. These documents should all have been served upon the Local Authority at the same time as the Claim Form was served in accordance with CPR.

We were unhappy with the position, but decided that there was no purpose in pursuing the matter further. The matter was eventually resolved by consent.

The case was notable for numerous discrepancies and inconsistencies in the pleaded case put forward by the Claimant. The Claim Form was originally issued against Parkinson Open Cast, National Coal Board and the Local Authority. The Claim Form was subsequently amended to show the Secretary of State for Energy & Climate Change (the successor to the National Coal Board), the Local Authority and Dunlop Limited as the Defendants.

It was pleaded in the Particulars of Claim that the Claimant was employed by the Secretary of State for Energy & Climate Change from 1978 until 1996. The Secretary of State filed and served a Defence in which it was pleaded that the Claimant was employed by the National Coal Board between 1 August 1967 and 5 April 1968 and between 9 August 1976 and 7 October 1979.

It was pleaded in the Particulars of Claim that the Claimant was employed by the Local Authority as a Refuse Collector from 1996 until 1998. The Local Authority filed and served a Defence in which it was pleaded that the Claimant was employed by them from 21 April 1997 until 4 August 2008.

The Claimant alleged that he was employed by Dunlop Limited between 1975 and 1979. However, it became apparent that the Claimant had not served proceedings upon Dunlop Limited and was not pursuing a claim against them.

 

Readers will appreciate that there is a significant difference between the dates referred to above, which betrayed a sense of confusion and uncertainty regarding the claim. The Claimant took no steps to amend the Particulars of Claim to deal with this issue, notwithstanding the contents of the Defences referred to above.

The Claimant acknowledged in the Particulars of Claim that he was aware that he was suffering from hearing loss in 2008 and urged the Court to exercise discretion to extend the limitation period pursuant to section 33 of the Limitation Act 1980. Notwithstanding this, the Claimant did not put forward any reasons why the Court should exercise its section 33 discretion in his favour. Both Defendants alleged that the Claimant’s claims against them were statute barred pursuant to section 11 of the Limitation Act 1980 and submitted that the Court should not exercise its section 33 discretion in the Claimant’s favour.

The Claimant adduced a medical report from Mr Vivian Singh, Consultant ENT Surgeon, in support of his claim. Mr Singh concluded that the Claimant was suffering from noise induced hearing loss and tinnitus. Mr Singh also acknowledged that, upon examining the Claimant, his initial view was that the Claimant was not suffering from noise induced hearing loss. He was then asked by the Claimant’s Solicitors to consider an audiogram undertaken in 2008, as a result of which he altered his opinion and concluded that the Claimant was suffering from noise induced hearing loss. This was an unusual statement to make and one which would have been the subject of scrutiny and cross-examination if the matter had proceeded to Trial.

The case was eventually transferred from the County Court Money Claims Centre to Merthyr Tydfil County Court. The District Judge considered the papers and ordered that there be an Allocation Hearing. We liaised with the Solicitors for the Secretary of State and we agreed that it would be appropriate for limitation to be tried as a preliminary issue. The Allocation Hearing took place on 20 April 2016 and the District Judge agreed with our submissions that limitation should be tried as a preliminary issue. He gave Directions leading to a Preliminary Issue Hearing before him on 16 August 2016.

Witness evidence

The parties dealt with disclosure and exchange of Witness Statements in accordance with the Court Order. The disclosure provided by the Secretary of State was limited, which was not surprising given the amount of time that had elapsed since the Claimant was employed by the National Coal Board. We were able to provide some disclosure on the part of the Local Authority, which consisted mainly of the Claimant’s personnel file and some occupational health records.

The Claimant served a Witness Statement which was dated 21 January 2016. The Claimant’s Solicitors had disclosed a copy of the Witness Statement at an earlier stage in the proceedings in order to deal with some evidential issues arising. The Witness Statement dealt with the issue of limitation in the briefest of terms. We were surprised that the Claimant’s Solicitors did not amend the original Witness Statement and/or produce a supplementary Witness Statement dealing with the issue of limitation, given that they were aware that limitation was going to be tried as a preliminary issue.

A Witness Statement was provided on behalf of the Secretary of State from a Solicitor in the firm of Nabarro. The writer provided a Witness Statement on behalf of the Local Authority. The Witness Statement highlighted the Claimant’s admission that his date of knowledge was 2008 and also contained evidence regarding the additional prejudice suffered by the Local Authority as a result of having to defend a stale claim. Enquiries were made of the Local Authority with a view to identifying any witnesses who supervised or worked with the Claimant. Some witnesses were identified, but we were instructed that any witnesses who supervised or worked with the Claimant were no longer employed by the Local Authority and their whereabouts were not known.

Interestingly, the Claimant did not produce any Witness Statements from any independent witnesses, which rather assisted the Local Authority’s case in relation to the issue of additional prejudice. We were surprised that the Claimant was not able to locate any witnesses who worked with him and who would probably have supported his evidence.

Medical records

 

We were given access to the Claimant’s medical records and these were analysed in detail. They contained a number of entries which supported the Claimant’s assertion that he was aware of a hearing loss which might be connected to his employment in 2008 and possibly earlier.

Preliminary issue hearing

The Claimant and his Solicitors were clearly concerned about the case, particularly after the Court ordered that limitation be tried as a preliminary issue. The Claimant made offers of £1,000, together with costs, to each Defendant. The offers were rejected. The Claimant then made offers of £10,000 inclusive of damages, interest and costs to each Defendant. These offers were also rejected. Both we and the Solicitor representing the Secretary of State thought that the Claimant might discontinue his claim before the Preliminary Issue Hearing, but this did not happen.

The Preliminary Issue Hearing was due to be heard before the District Judge in Merthyr Tydfil County Court on Tuesday, 16 August 2016. During the late afternoon of Monday, 15 August 2016, we received a telephone call informing us that the case had been transferred to Cardiff County Court where it would be heard by His Honour Judge Jarman QC.

The hearing proceeded before His Honour Judge Jarman QC on Tuesday, 16 August 2016. Each party was represented by Counsel and the Claimant gave oral evidence. He was subjected to a thorough cross-examination by Counsel for the Defendants and proved to be a poor witness and unreliable historian. 

Having heard all the evidence and legal submissions, the Judge dismissed the claim against both Defendants and awarded costs to the Defendants, not to be enforced without permission of the Court as this was a QOWCS case.

The Claimant admitted from the outset that his date of knowledge was 2008, which meant that the claim was approximately 4 years out of time. The Judge held that this concession had been correctly made.

Counsel for the Local Authority submitted that the correct date of knowledge was 2005, but the Judge did not accept this. The Judge thought that the date of knowledge was rightly put at 2008 because it was clear that the Claimant was very worried about the ringing in his ears at that time.

The Judge considered section 33 of the Limitation Act 1980 in detail and dealt with the relevant sub-sections as follows:

 

  • Delay: He held that the Claimant had provided no evidence as to what had happened between 2008 and 2014. The limitation period expired in 2011 and there were no good reasons for the 4 year delay in issuing proceedings.

  • Cogency of evidence: The Claimant claimed that the cogency of the evidence had not really been affected, but the Judge rejected this. The Claimant was a very poor witness and his memory for dates was hopeless, but the Judge forgave him that. The Judge was influenced by the fact that the Local Authority had been unable to trace two witnesses who had apparently worked with the Claimant. He noted that if the case had proceeded, it would be necessary to rely heavily on the Claimant’s evidence, which he thought was poor e.g. – the Claimant in oral evidence said that the work with the refuse wagons was just as noisy as his other employments, which is not what he had told the medical expert, Mr Singh. In oral evidence, he also mentioned having to communicate with hand signals, which was not in his Witness Statement. He also said in his Witness Statement that the conveyor at Dunlop Limited was “incredibly noisy”, but in oral evidence he disagreed with his statement. He said that it was “noisy”, but no more. The Judge considered this to be particularly relevant as Dunlop had been joined as a Third Defendant, but for reasons that were unclear, the action against them had not been pursued.

  • Conduct: There was no criticism of the Local Authority’s conduct.

  • Disability: This was not relevant.

  • Delay and steps taken: The Claimant had been referred to a Consultant in 2008. He accepted that he did not attend three hospital appointments that were sent to him in 2009. He then let the matter rest until he saw in an advert in a newspaper in about 2014 stating that he could claim for his tinnitus.

 

The Judge decided that a fair Trial could not take place if he disapplied the limitation period and he found that the claim was statute-barred.

Comment

The case highlights the difficulties faced by Defendants in dealing with stale claims. It also emphasises the importance of taking a robust approach in the right case. The Claimant’s downfall in this matter was his admission that his date of knowledge was 2008. There was a suggestion that his date of knowledge was 2005, but the Judge did not accept this.

 

There was a risk that the Judge might have found that the claim against the Secretary of State was statute barred, but that the claim against the Local Authority was not, because of the fact that the Claimant’s employment with the Secretary of State had occurred so long ago. The employment with the Local Authority was more recent and there were some documents available in relation to this period. However, the Judge took the view that the whole claim was statute barred.

 

There has been a proliferation of NIHL cases brought against Local Authorities and other organisations in the South Wales area in particular, and many such claims are brought by Solicitors who do not practise in the area. A common feature of many of these cases is that they are poorly prepared and are often without merit.

 

The case also highlights the importance of applying to have limitation tried as a preliminary issue in the right circumstances.